Maryland Defense Counsel, Inc. Promoting justice. Providing solutions


box top

Membership Criteria

Membership is open to practicing attorneys who devote the majority of their litigation-related time to the defense of civil litigation.

Join MDC

(Volume discounts for law firms and reduced rates for government attorneys. Click here for information.)

box bottom

Get Adobe Reader

E-Alert Case Updates

Delaware Court affirms Industrial Accident Board determination that stipulated impairment percentage constitutes an “award” for payment of medical witness fees

Kenneth English v. Reed Trucking
C.A. N15A-05-007 (July 6, 2016) The Superior Court of the State of Delaware

by Marie Claire Langlois, Summer Associate
Semmes, Bowen & Semmes (

Available at:

In a worker’s compensation claim, Mr. English, who injured his right rotator cuff while unloading pallets for Reed Trucking (“Reed”), filed a Petition to Determine Additional Compensation Due in October of 2014. Reed offered a settlement of eight (8) percent medical impairment, but Mr. English rejected that offer and continued to the administrative hearing by the Industrial Accident Board (“the Board.”) In presenting his claim to the Board, Mr. English’s expert used the fifth (5th) edition of the AMA Guidelines to rate Mr. English’s impairment, finding an injury of thirteen (13) percent. Comparatively, Reed’s expert under the AMA Guidelines, fifth (5th) edition, found a two (2) percent impairment, and under the AMA Guidelines, sixth (6th) edition, found a five (5) percent impairment. The Board found Reed’s expert’s analysis under the sixth (6th) Edition most persuasive, agreeing with a five (5) percent medical impairment and entitling Mr. English to payment of his medical witness fees.

Mr. English appealed to the Superior Court, stating the ruling was improper on two (2) theories: (1) that the Board’s finding of five (5) percent medical impairment was unreasonable and unsupported, and (2) that the Board erroneously found Reed’s expert more credible than his own expert. Reed cross-appealed the decision, arguing that the Board’s decision to assign the costs of Mr. English’s medical witness to Reed was erroneous. The Court failed to find either party’s arguments persuasive and affirmed the decisions of the Board.

The Court first recognized that its role was limited in determining whether there was substantial evidence to support the Board’s findings. It is solely the Board’s responsibility to weigh the credibility of each party’s experts, and it is wholly entitled to accept one expert’s opinion over the other. The Court looked closely at the Board’s decision, noting that not only did the Board reference the testimony of both experts, but it fully articulated its reasoning for accepting Reed’s expert’s opinion. For that reason, the Court concluded that the Board based its conclusion on factual findings that were amply supported by substantial evidence.

Reed brought its claim contesting the taxation of medical witness costs on the basis that Mr. English’s result was not in fact an “award,” as required under 19 Del. Code Ann. § 2322(e). Because Reed had again stipulated to five (5) percent impairment in negotiations just prior to the hearing, which Mr. English rejected, Reed asserts that no benefit was incurred and the claimant did not receive an “award.” Reed based their argument on two legal standards: the accepted rules of statutory construction, and the interpretation of “award” under the Delaware Worker’s Compensation Statute.

“The normal rules of statutory construction provide that, in enacting a statute, the General Assembly ‘is presumed to have inserted every provision for some useful purpose and construction, and when different terms are used in various parts of a statute it is reasonable to assume that a distinction between terms was intended.’” Citing Giuricich v. Emtrol Corp. 449 A.2d 232, 238 (Del. 1982). The Worker’s Compensation Statute states that a claimant cannot receive attorney’s fees if the employer tenders a settlement offer, prior to the hearing, that is equal, to or greater than, the amount ultimately awarded. 19 Del. Code Ann. 2320(10)(b)(2015). No comparable language exists regarding medical witness costs. The Court addressed both of Reed’s theories in determining that the expressed preclusion of attorney’s fees in one section of the code, along with the lack of preclusion in the other, should be decisively read as an intentional omission.

The Court noted that compensation is not limited to financial gain, and may be any favorable result issued by the board, including future permanency. Moreover, they emphasized that a resulting “award” does not just come from the hearing, and instead comes from the “process” of filing a claim with the Board. Because Mr. English would not have been entitled to any additional benefits prior to filing, Mr. English’s five (5) percent award was sufficient.